NSBA General Counsel Francisco Negrón, Jr. has asked the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) to clarify or reconsider its broad enforcement position with respect to student bullying and harassment, reports School Board News Today. In an October 26, 2010 “Dear Colleague” letter, OCR issued guidance to schools on bullying and harassment related to federal civil rights laws. Negrón responded with a letter to ED’s general counsel, Charlie Rose, noting NSBA’s shared dedication to helping schools address bullying, but expressing concern that the guidance would have many unintended consequences and could be extremely difficult for schools to implement.
OCR’s “Dear Colleague” letter warned school officials that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal anti-discrimination laws enforced by the agency’s Office of Civil Rights.
The enforcement position taken in the Education Department’s letter differs from the legal precedent set in a 1999 case, Davis v. Monroe County Board of Education, in which the Supreme Court ruled that schools could be held liable under Title IX for student-on-student harassment when the school was aware of the situation but did not take action to stop it.
However, the Education Department’s enforcement position as stated in the guidance would further broaden the standard set by the Davis ruling by advising that school officials would be responsible if they “reasonably should have known” about a situation. It also would broaden Davis’s cumulative standard that harassment must be “severe, pervasive, and objectively offensive” to allow any of the three factors to qualify.
“Our fear is that, absent clarification, the department’s expansive reading of the law … will invite misguided litigation that needlessly drains precious school resources and creates adversarial school climates that distract schools from their educational missions,” Negrón wrote. He urged ED to recognize that local school officials would have a better understanding of an individual situation, and should not be second-guessed by courts. “The professional judgment of educators is key to addressing the problem of bullying.”
[Editor's note: NSBA General Counsel Negrón's letter to the Department of Education appears at the first link below. Follow the second link below for a summary of OCR's October 26, 2010 "Dear Colleague" letter.]